Several of my recent posts have discussed the legal concept of “standing,” which is a limit on the power of federal courts derived from the fact that the Article III, section 2, of the United States Constitution extends the judicial power of the United States only to “Cases” and “Controversies.”((See There’s a Difference Between “Constitutional” and “Unreviewable”; CNN Adds to Laurels with Good Explanation of Standing Issue in Student Loan Case; Texas Federal Court’s Dash to Invalidation of Biden’s Student Loan Forgiveness Program Likely to be Called Back for False Start.)) The requirement of standing is said to prevent courts from rendering advisory opinions, but it can be frustrating because standing does not exist where the prospective plaintiff’s concern is a generalized grievance such as, I have predicted,((Mixed Bag in Media Review)) whether President Biden’s student loan forgiveness plan is authorized by the HEROES Act.((On Tuesday the Supreme Court heard oral argument on the student loan cases: Biden v. Nebraska (audio feed | transcript) and Dept. of Education v. Brown (audio feed | transcript). A good academic analysis of the requirement of standing in relation to challenges to student loan forgiveness can be found in Hoover, Standing and Student Loan Cancellation, 108 Va. L. Rev. Online 129 (2022).))
Should the requirement of standing be relaxed where there is an important question that would otherwise be unreviewable?((I approach this question from a policy perspective, not by way of a legal argument that present standing doctrine is wrong.)) I guess that depends on whether you agree with the policy sought to be reviewed. After all, checks and balances are most important with respect to actions that one opposes.
New Jersey’s state courts do not have the same standing requirement as do federal courts. Standing in New Jersey requires only “a sufficient stake and real adverseness.”((Crescent Park Tenants Ass’n v. Realty Equities Corp., 58 N.J. 98, 107 (1971))) The question of expanded federal standing is considered by CNN’s Supreme Court reporter Ariane de Vogue in an article I have earlier praised, “The Supreme Court’s student loans case is about more than student loans.”
While shutting the courthouse door to opponents of executive action may empower Presidents in the short-term, it should give Congress pause in being too loose in the delegation of power in the longer term. You may trust today’s President, but what about the next?
Jay Bohn
March 2, 2023